Law Commons^™

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …

More Restrictive Alternatives, Michael Coenen

Journal Articles

No abstract provided.

Introduction: The Effects Of Selection Method On Public Officials, Clayton J. Masterman

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No abstract provided.

Continuing Derrick Bell's Devotion In Creative Action, Angela Mae Kupenda

Journal Articles

I remember my first time seeing Derrick Bell in person and hearing him speak, just a few years before he passed away. I was in awe of him for many reasons, but primarily for two reasons. First, I noted from watching him with his devoted students, how mutual was the devotion coming from him—devotion to them as people and as those who would surely carry on his great work of seeking to forge equality in America and beyond. And second, I was in awe of him because of his devotion to the elimination of racism, while at the same time …

Hidden Law: Taking The Comments More Seriously, Melissa T. Lonegrass

Journal Articles

No abstract provided.

There Are No Ordinary People: Christian Humanism And Christian Legal Thought, Richard W. Garnett

Journal Articles

This short essay is a contribution to a volume celebrating a new casebook, "Christian Legal Thought: Materials and Cases", edited by Profs. Patrick McKinley Brennan and William S. Brewbaker.

Embracing Our First Responder Role As Academics - With Inspiration From Langston Hughes, Angela Mae Kupenda

Journal Articles

In the midst of the post-2016 political crisis, our role as academics is that of First Responders. In physical crises, like a fire, First Responders play an important role. They intentionally put themselves in harm’s way to fulfill an overarching purpose of helping others, even at their own risk. They strategically prepare, train, and work for years to prepare for this role in the midst of crisis. As academics who care about equality, we are First Responders.

Exploiting Conservation Lands: Can Hydrofracking Be Consistent With Conservation Easements?, Jessica Owley, Collin Doane

Journal Articles

No abstract provided.

Exorcising The Clergy Privilege, Christine P. Bartholomew

Journal Articles

This Article debunks the empirical assumption behind the clergy privilege, the evidentiary rule shielding confidential communications with clergy. For over a century, scholars and the judiciary have assumed generous protection is essential to foster and encourage spiritual relationships. Accepting this premise, all fifty states and the District of Columbia have adopted virtually absolute privilege statutes. To test this assumption, this Article distills data from over 700 decisions — making it the first scholarship to analyze state clergy privilege jurisprudence exhaustively. This review finds a privilege in decline: courts have lost faith in the privilege. More surprisingly, though, so have clergy. …

The Case Against Oral Argument: The Effects Of Confirmation Bias On The Outcome Of Selected Cases In The Seventh Circuit Court Of Appeals, Christine M. Venter

Journal Articles

Scholars have long been divided over the role, function, and significance, if any, of oral argument in judicial decision-making.' Federal courts seem similarly divided, as some circuits routinely grant oral argument in almost every case, while others grant oral argument in only a small fraction of appeals. This divide should not be dismissed as merely an idiosyncratic debate or as a response to excessive workload, particularly when one considers that approximately 53,000 appeals were filed in federal courts of appeals in the year ending September 30, 2016.2 Since the Supreme Court grants certiorari in only approximately eighty cases each year, …

Bleached! The Catastrophe Management Of Corals, Irus Braverman

Journal Articles

Corals have recently emerged as both a sign and a measure of the imminent catastrophic future of life on earth and, as such, have become the focus of intense conservation management. Bleached! draws on in-depth interviews and participatory observations with coral scientists and managers to explore the management of the corals’ ecological catastrophe to come. The article starts by describing the unique life of corals, the importance of calculability in catastrophe management, and the coral scientists’ preoccupation with classifying, counting, and seeing in their attempt to comprehensibly monitor corals and anticipate their decline. Algorithmic models and elaborate temporal analyses are …

A Silent Struggle: Constitutional Violations Against The Hearing Impaired In New York State Prisons, Farina Barth

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No abstract provided.

Enhancing Conservation Options: An Argument For Statutory Recognition Of Options To Purchase Conservation Easements (Opces), Federico Cheever, Jessica Owley

Journal Articles

The most dynamic component of the conservation movement in the United States for the past three decades has been land conservation transactions. In the United States, land conservation organizations have protected roughly 40 million acres of land through transactions. Most of these acres have been protected using conservation easements. Climate change threatens the vast conservation edifice created by land conservation transactions. The tools of land conservation transactions are, traditionally, stationary. Climate change means that the resources that land conservation transactions were intended to protect may no longer remain on the land protected. Options to purchase conservation easements (OPCEs) have long …

Compensatory Women's Rights Legal Education In Eastern Europe: The Women's Human Rights Training Institute, Isabel Marcus

Journal Articles

To compensate for the absence/minimization of women's rights in the law faculty curriculum in post-socialist states, in 2002 a coalition of women's rights NGOs, funded by OSI, developed a Women's Human Rights Training Institute (WHRTI) in Sofia, Bulgaria. Now embarking on its sixth cycle and having graduated more than 100 lawyers (mostly working in NGOs in post-socialist states), WHRTI has developed a women's rights legal education and training program triad consisting of feminist legal theory, women's rights legal practice, and feminist legal pedagogy. The goal of the program is to educate and train lawyers to understand and use various domestic, …

Public Access To Spatial Data On Private-Land Conservation, Jessica Owley

Journal Articles

Information is critical for environmental governance. The rise of digital mapping has the potential to advance private-land conservation by assisting with conservation planning, monitoring, evaluation, and accountability. However, privacy concerns from private landowners and the capacity of conservation entities can influence efforts to track spatial data. We examine public access to geospatial data on conserved private lands and the reasons data are available or unavailable. We conduct a qualitative comparative case study based on analysis of maps, documents, and interviews. We compare four conservation programs involving different conservation tools: conservation easements (the growing but incomplete National Conservation Easement Database), regulatory …

The Richardson Escuela: Law As Politics, Makau Wa Mutua

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No abstract provided.

Bureaucratic Speech: Language Choice And Democratic Identity In The Taipei Bureaucracy, Anya Bernstein

Journal Articles

This article illuminates the social nature of bureaucratic practice. Analyzing the everyday speech of bureaucrats in a polyglossic society reveals both their intensely interactive conduct and their recognition that the government they comprise is itself a participant in a social world of institutions and values. My ethnography shows how Taipei city government administrators mobilize ideologies associated with Taiwan’s two primary languages, and stereotypes associated with bureaucracy, to undermine both. Instead, they present themselves as a post-ethnonational and post-bureaucratic avant garde of their new democracy. In doing so, they draw on local values and tropes of legitimation, which place a premium …

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

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No abstract provided.

Minor Courts, Major Questions, Michael Coenen

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No abstract provided.

The Scrying Game: The First Amendment, The Rise Of Spiritualism, And State Prohibition And Regulation Of The Crafty Sciences, 1848-1944, Christine Corcos

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No abstract provided.

Have Cities Abandoned Home Rule?, Rick Su

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No abstract provided.

Sector Agnosticism And The Coming Transformation Of Education Law, Nicole Stelle Garnett

Journal Articles

Over the past two decades, the landscape of elementary and secondary education in the United States has shifted dramatically, due to the emergence and expansion of privately provided, but publicly funded, schooling options (including both charter schools and private-school choice devices like vouchers, tax credits and educational savings accounts). This transformation in the delivery of K12 education is the result of a confluence of factors—discussed in detail below—that increasingly lead education reformers to support efforts to increase the number of high quality schools serving disadvantaged students across all three educational sectors, instead of focusing exclusively on reforming urban public schools. …

Beyond Zero-Sum Environmentalism, Shalanda Baker, Robin Kundis Craig, John C. Dernbach, Keith H. Hirokawa, Sarah Krakoff, Jessica Owley, Melissa Powers, Shannon M. Roesler, Jonathan Rosenbloom, J. B. Ruhl, James Salzman, Inara Scott, David Takacs

Journal Articles

Environmental law and environmental protection are often portrayed as requiring trade offs: “jobs versus environment;” “markets versus regulation;” “enforcement versus incentives.” In the summer of 2016, members of the Environmental Law Collaborative gathered to consider how environmentalism and environmental regulation can advance beyond this framing to include new constituents and offer new pathways to tackle the many significant challenges ahead. Months later, the initial activities of the Trump Administration highlighted the use of zero-sum rhetoric, with the appointment of government officials and the issuance of executive orders that indeed seem to view environmental issues as in a zero-sum relationship with …

Before Interpretation, Anya Bernstein

Journal Articles

What a statutory interpretation opinion interprets may seem given. It is not: this article shows how judges select what text to interpret. That text may seem to carry with it one of a limited range of contexts. It does not: this article shows how judges draw on a variety of factors to situate the texts they interpret in unique, case-specific contexts. Selecting and situating form the infrastructure of interpretation. Their creativity and choice provide the basis on which assertions of determinate meaning are made. That process reveals how contestation and indeterminacy permeate legal interpretation even as judicial opinions seek to …

Prolegomenon To A Defense Of The City Of Gold, David A. Westbrook

Journal Articles

In recent political contests, economics has been used as a subjective language of disputation and identification, contradicting the field's traditional aspirations to objectivity, even science. In both partisan politics and the related but not identical bifurcation between "populist" and "establishment" or "elite" discourse, positions have become routinized into antagonistic tropes. This poses a serious problem for the United States, which uses political discourse not only for politics, but to create social cohesion among disparate groups. More generally, elites bereft of Marx no longer have a grammar with which to conceptualize, critique, and ultimately defend the global liberal order that they …

Anticipating Endangerment: The Biopolitics Of Threatened Species Lists, Irus Braverman

Journal Articles

The last two decades have witnessed an explosion of national and global lists of threatened and endangered species. This article draws on interviews with prominent list managers and observations of their assessments to explore the scientific practices of list-making in the context of species conservation. Delving into the complex calculations of risk and threat that take place in the process of ranking nonhuman species based on their probability of extinction, the article explores the threatened species list as a biopolitical technology of catastrophe governance. My focus on two prominent lists — the IUCN Red List of Threatened Species and NatureServe’s …

The Altruistic Rich? Inequality And Other-Regarding Preferences For Redistribution, Matthew Dimick, David Rueda, Daniel Stegmueller

Journal Articles

What determines support among individuals for redistributive policies? Do individuals care about others when they assess the consequences of redistribution? This article proposes a model of other-regarding preferences for redistribution, which we term income-dependent altruism. Our model predicts that an individual’s preferred level of redistribution is decreasing in income, increasing in inequality, and, more importantly, that the inequality effect is increasing in income. Thus, even though the rich prefer less redistribution than the poor, the rich are more responsive, in a positive way, to changes in inequality than are the poor. We contrast these results with several other prominent …

Mineral Estate Conservation Easements: A New Policy Instrument To Address Hydraulic Fracturing And Resource Extraction, Robert B. Jackson, Jessica Owley, James Salzman

Journal Articles

In a few short years, hydraulic fracturing has transformed the oil and natural gas industries and changed the landscape of energy policy, while generating major conflicts over local land use decisions. Individuals and communities have turned to the law to restrict oil and natural gas production with mixed success. While little explored, there is also potential for private efforts to restrict fracking.

We propose a novel tool, the Mineral Estate Conservation Easement (MECE), to provide landowners with the ability to restrict hydraulic fracturing and other oil and gas subsurface activities in areas of particular social or ecological vulnerability. The article …

Precedent And Speech, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …

The International Criminal Court: Promise And Politics, Makau Wa Mutua

Journal Articles

No abstract provided.